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tv   [untitled]    April 26, 2011 11:00pm-11:30pm PDT

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that's what ceqa requires. i think those are the main points. the fact that these are urban aesthetics, those are covered by seek washing the pocket protector's case clearly holds that. there's no question that there are potential environmental impacts so it's only fair to this board that you consider all of those things before this project is approved. it hasn't been before the planning commission. the at&t knows where it wants to put these boxes. i remember the last thing i wanted to say. the burden on your staff and this city to have each individual box go through a full analysis on its own is significant. it makes sense. look at these all together, think about the criteria, adopt mitigation measures whambings needs to be done to -- measures, whatever needs to be done. look at it all at once and then of course everyone supports the upgrade of this utility and the
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service that is being proposed. but it can't be done on a categorical exemption. thank you, unless there are questions. president chiu: thank you. supervisor wiener: hi. so, there are a couple of things that have been a real concern and question for me and i haven't gotten a lot of -- as much certainty as i would like about them. and what i want to ask you is, and these are all things that at&t states, and i want to ask you if we aassume for the sake of argument that they are true, if e.i.r. would still be required and they have to do with the location, where they put the boxes, and also whether any other carriers are going to enter the market and put additional boxes afterwards which is a concern that has been
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raised. so if we, at&t, states that it is physical yim possible to truly underground these boxes in a way that doesn't cause a protrution, in other words, if you underground them you'll still have some sort of air conditioning unit, that would protrude three feet instead of four feet. according to at&t it's physical yim possible to have a flush undergrounding -- physically impossible to have a flush undergrounding. they also state that private property is not workable because as a phone company they need 24/7 access and quick access if there's a problem with the phone line. so again if we assume that that is true. and then finally, if we assume that no other carrier would have the resources to be able to enter the market and do this kind of project, in other words, if we had certainty that this would be the end in terms of the major box projects in the city, so if all those things were true, and i understand that you may dispute some or all of them,
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would an e.i.r. still be required? >> yes. and i appreciate the question and i will accept it's true, the three facts that are we actually don't believe are true. just for purposes of the question. what that does is put you to the end of the decision making process without the benefit of environmental review. the cases are clear that you don't -- the fact that an e.i.r. may or may not be helpful or may or may not produce new information is irrelevant to the decision before you today. all your decision has to be -- it must only be based on whether there's a fair argument that the cumulative impacts of these 726 boxes, even if you don't consider opening the door to other carriers, it's these hundreds and hundreds of boxes on san francisco streets that there's a fair argument, much more than a fair argument, in the record that there could be aesthetic impacts, pedestrian safety impacts, etc. so regardless of whether you feel there's a compelling argument that they can't be
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undergrounded, that other carriers won't participate and now i'm forgetting your third one, but regardless of all that, you don't -- you can't skip ahead to that conclusion analysis. you need the analysis, the objective analysis, not from at&t, but an objective e.i.r. analysis. the special question is only is there evidence of potential impact, not is there really a solution out there? that's not the question that's before you and it would be an improper basis for you to deny or to deny this appeal. supervisor wiener: and my next question would be as to the two items, to the apellants. i believe they do dispute those three. but i'd like an explanation for. for example, -- an explanation. for example, that if you believe that it is physically possible to underground them in a flush way, for example, i'd like to know why. and i will just say that, and this is going to be -- these questions are going to be from me or perhapses from other colleagues to all parties, including planning, because i think that i have a frustration
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about dish don't feel like i have -- about -- i don't feel like i have as much information and objective data as i would like. and so i'd like to know -- but i know the apellants have stated it can't be undergrounded in a flush way but i've never heard actual backup to that argument. >> there is going to be a speaker tonight and it's not myself since i'm just a laurned not a technical expert, someone will come before you to talk about what they've learned about the potential for these to be undergrounded. and also the fact that we know that there may well be ways to get on private property access 24 hours a day, that certainly is feasible. but an e.i.r., you don't have to know ahead of time that there is a feasible alternative we all know that lot of times do you an e.i.r. and there are mitigation measures but maybe there isn't a significantly beneficial alternative. here we think very strongly that there are those alternatives, but regardless of whether you
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agree or believe that or staff does, that's not a reason not to do an e.i.r. it's not the question before you. but people will speak to the undergrounding possibilities and also the private property issue. i appreciate that. again, that's an unfair burden to put on you, to make that decision without that technical information from experts. this isn't the time for that. supervisor wiener: assuming it's not exempt. but that's assuming it's not exempt. >> it isn't exempt. supervisor wiener: and that's obviously the dispute. >> yes. thank you. president chiu: supervisor campos. i think you probably have a couple more questions. supervisor campos: thank you. i wonder if you could explain a little bit more the point that you make about this project not falling within the class three exemption. >> ok. the question is whether, and i agree with staff, latest cases
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look to see if they'll fall within the class three, as i explained, even if it's arguably false within it, we have to look at the exceptions or what's really important here. but the two possibilities from class three for a possible categorical exemption, what we feel is this basically falls into the category of construction and location of limited numbers of new small facilities or structures. and you hear it says limited. it's the construction and location. with at&t they argued this three years ago too and this board did not buy it. they argued that instead they should look at the installation of small new equipment and facilities in small structures. that implies a structure is already there and you're putting equipment into them. here there's going to be construction and location of new facilities. so it falls into that first phrase is our argument. that's the only one that makes
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sense because you're locating, you're not just putting it into existing small structures. so because it says limited and we've got 726, our position is that it does not fit into this category. this category three also talks about one single family residence can be up to three, due plecks, one store or motel or office. again, it's important, i think, supervisor, to look at the reason behind the categorical exemmingts. these are categories of things that just normally don't have impacts. they have been helpfully categorized to help agencies figure out when environmental review is really pointless. this isn't a situation where environmental review is pointless. so regardless if it might arguably fit the language of the category, the exemption can't go forward. you need more information. what we have manifested in this record is everyone agrees there could be aesthetic impacts there could be pedestrian safety im--
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impacts there could be pedestrian safety impacts. you're done at that point. supervisor campos: i wonder if you have a response to the point that they're making, that this falls under the class three exemption because it is an installation of small new equipment and facilities and small structures. >> it doesn't say -- but what it says here that they're quoting, the stals of small new equipment and if a similarities in small structures as opposed to the phrase below which says location of new structures. the second one sounds like you're putting equipment into structures that are already there. because otherwise the two aren't any -- there's no difference between the first two of these phrases. the first phrase says, construction and location of new small structures. the second one is you're putting equipment into them. supervisor campos: so this would apply if they were placing this equipment in a structure there's
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already there. >> yes. that's the logical reading of. this the first says limited numbers and of course you can decide what limited means, the agency. but hundreds and hundreds doesn't sound like limited. that's why we're arguing that first section applies because it doesn't make sense otherwise. supervisor campos: i see. thank you. supervisor mar: thank you. i just had a couple of questions since you were involved with the 2005 appeals. the first one is, jennifer clary from a letter from "san francisco tomorrow" says that in 2005 when our current mayor was the head of the department of public works that he signed regulations that require more costly alternatives to the installation of right of way utility boxes or other installations and if not placed underground utility boxes are placed on private property according to the regulations. i'm just curious, what authority does that directive or
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regulation from the head of department of public works have today six years later? >> if it hasn't been withdrawn it's still a regulation. as i recall, the impetus for that was anage knock -- an acknowledge of the of the blight that the boxes have, one needs to look at those alternatives. that doesn't directly relate to the ceqa process which is the question before you today, that's an indication of the concern of the city and the importance of looking at alternatives. and the appropriate way to do that is for the whole program, not box by box by box, 726 times. supervisor mar: and then san francisco beautiful and others are making an argument that at&t is a private entity that is trying to expand into public space on swalks, in heavily traveled street areas and at&t reps are saying that they're a quasi-utility and public entity.
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but i'm just curious, under state law, that have different requirements so we should be look at them as if they were a public utilities commission, but are they a private entity or are they quasi-public entity? >> i don't note answer to that. but again, i don't think that affects your decision because as a private party they would come to you for a permit. as a public agency, even if the city itself as a public agency decided to place all these boxes, it would be a discretionary decision with possible environmental impacts subject to ceqa. so whether it has ra right to be in the right of way or it's quasi-public or not, you have -- they're proposing to do something with potentially significant impacts. we need to do environmental review. so that question, while very interesting and there's probably different points of view and i'm not a utilities expert but i do know ceqa and this project, regardless, would require environmental review. president chiu: supervisor
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elsbernd . supervisor elsbernd: thank you. i've got a number of questions. let me start with what i imagine will be an easy one for you. but still i think an important point. i think the number is something a little over 200 cities in the state of california who are also subject to ceqa have granted the categorical exemption. for this project. not one of those cities has said an e.i.r. is necessary. i imagine what you're going to say generally in san -- is san francisco is unique but let me put the ball on the tee for you. tell me why san francisco, unlike any one of these 200-plus cities, needs to do an e.i.r. and why all of those cities who are also subject to ceqa are wrong. >> i don't know the evidence that was before. assuming 200 cities said fine, i don't know the evidence that was before those cities. yes, this is a uniquely
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beautiful urban location in areas, in many of the cities of california have more space, more urban -- excuse me, more rural areas, even within a city that they can place these, so they may have different impacts. we also have the director from ed lee and other pieces of information in the record where this city has acknowledged that these boxes will have the potential to cause blight and for that reason have to be carefully cited. i don't know how those cities -- i truly don't know how they proceeded, what evidence they had and where the locations were or how many of the boxes were needed. we really don't have the information. what i do know is the fact that other cities didn't do it doesn't mean that the law doesn't require it here. it's not really relevant. supervisor elsbernd: ok. let's talk about the categorical exemption and the class three, two arguments here. one that you're suggesting
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they're applying the wrong type, that they should be applying the first type within class three, as i understand it there are three types within class three. what i heard you say is the first type is the appropriate one and planning and the project sponsors are inappropriately applying the second type? is that correct? >> yes. even to say a little more. there's a preamble to class three where it describes the kind of things that are exempt. then it lists, there's six things listed below. none of these that are the specific types of projects include a project like this. we're talking about the general -- supervisor elsbernd: that lists of examples is not exhaustive, correct? it specifically says, the statute there, that this is just an example and other projects that are similar could fit? >> i completely agree. all i'm saying is that the preamble is the general terminology and it gets to the specifics, it's not an exhaustive list. even though the language at the beginning, all question talk about is whether it seems to fit
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or not and logically it seems to me that the first phrase is the one that fits because it talks about locating small structures. supervisor elsbernd: and you're making the argument that the second one, the department and the sponsor, are applying, is inaccurate becausify understand it right, you're saying that applies to equipment going into existing facilities. >> it implies that because it doesn't talk about locating. supervisor elsbernd: the phrase existing or the word existing is not in the statute. >> that's right. the description only talks about installation, though. it doesn't talk about locating them. supervisor elsbernd: and the project sponsors have submitted a brief and they've cited a case that specifically interprets this second point that was the california coastal commission and the installation of new parking devices that we're not going inside an existing facility but we're brand new. and the court upheld it. >> ok. that may be. that's regardless of whether
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class three fits and i also acknowledge it's substantial evidence standard. supervisor elsbernd: i've got questions on that. this case seems to be on point that says this notion that it has to go into an existing facility. that case doesn't suggest that at all. it says the exact opposite. >> i would suggest that since the substantial evidence standard applies to whether something fits in a category, if there's evidence on the city's side, i haven't -- we haven't focused on that point. the more important point is that the cumulative affect of so many of these -- so it's not -- i would just move on from there and say, yes, you have a reasonable argument, i'm not aware of the case you're talking about. supervisor elsbernd: i appreciate that. the cumulative impact really is the kind of frankly lone hook the apellants have. >> and the unusual circumstances as well. i'm just telling you, that's another argument. supervisor elsbernd: the cumulative one is the one that could spolentionity i will sway
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me. big -- that could potentially sway me. big picture. 49 square miles, iminge not even going to try to do the math of the total number of square feet that are san francisco city sidewalks and dividing that total amount by what sounds in this room is a big number, 700-odd boxes, but when you do the math, you're probablying talking less than .0001% of the total square footage of san francisco sidewalks? give me a little bit more on why that is a cumulative impact. i don't see that as a significant cumulative impact. convince me that it is. >> the question isn't respectfully whether you do or not, it's whether there's evidence that it is. there's evidence from your staff -- supervisor elsbernd: i'm not hearing that's evidence. >> on the record from your staff, from ed lee talking about the potential for blight from these boxes, we have a model
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that will be brought in, how big they are, they attract graffiti, they have an impede pedestrian access, we have the record from 2008 of the testimony before this board about the significant impacts and the opinions of the people who live here. so when you're living in an area , a beautiful urban area like this, people have opinions and your staff has indicated that there is potential for blight. otherwise they wouldn't be -- they wouldn't have this requirement that each box be looked at carefully for its location to reduce the potential for pedestrian safety problems, litter, graduatityify and -- graffiti and other impacts. those conditions wouldn't be needed if as you say the small number of these box meant there was no potential environmental impact which is the standard. supervisor elsbernd: then just, my last question for you, -- now, help explain to me why the
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logical conclusion i'm going to try to draw doesn't work. but if i follow yourlight line of reasoning -- your line of reasoning, when the department of parks and traffic in my district just built an intersection, when they did that they had to add a bunch of utility boxes that operate those lights. n.t.a. is planning on doing that all over the city. do we need to do an environmental impact report based on your logic on muni's root construction of signal loot -- route construction of signal rights all across the city? >> it would depend on whether they're replacing existing signals of similar size or whether they're going to be placing those improvements in an area that would cause pedestrian safety issues or blight in terms of aesthetics. if a replacement of an existing structure is very different than putting something new in an open area in the public right of way. supervisor elsbernd: the intersection i'm referring to they replaced but it's
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significantly bigger, it's right in the middle of a pedestrian walkway. a little island. >> i don't know. if there was evidence of a problem, that's -- the statute and the case law, the supreme court guidance is really clear, you err in favor of environmental protection. if there's a close call, you do the environmental review, you exempt something only if there's no possible significant impact and it's in those cases, there are people that bring substantial evidence that there's going to be a problem, yes, it could require environmental review. supervisor elsbernd: ok. thank you. president chiu: supervisor wiener. supervisor wiener: supervisor mirkarimi can go first. supervisor mirkarimi: just one quick question. say the thing was approved, the repeal denied and normal processes proceeded, with regard to the department of public works being required to issue permits and then if permits were
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contested they would then be potentially appealed with the board of permit apeels. what is insufficient about that process? >> well, if the exemption is upheld for the whole program, even though, as i've said, the whole program hasn't been approved, the environmental review would be truncated and it would be sugseg mated, piecemealed. any one box, i don't know, except in exceptional circumstances, may not be a significant environmental impact. so you look at box by box by box and it's the classic situation of making something look like it has no significant impact because it's so small. but together they add up. it doesn't provide for ceqa review. it's also a very cumbersome way to approve 726 projects. >> do you think, though, that based on any kind of protest, neighborhood protests, that would then petition for appeal through the department of the board of permit appeals, that
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this would be sanitized of that potential argument because it would have not been recognized here at the board of supervisorses on environmental review, if it is then advanced? >> i'm sorry, but i'm not quite understanding. are you saying that at that point the appeal process wouldn't look at the issues that we're asking to you look at? it's hard to know what the board of appeals would do but their authority is limited to seeing if they comply with your regulations as opposed to whether there are significant environmental impacts. they would be required to see whether each one complies with the regulations that are in play at that point. supervisor mirkarimi: and you're presuming that the process would also discount this particular argument on environmental review, is that correct? >> i don't see how -- well, it's freaky -- tricky because the current process in my view hasn't been followed correctly because this appeal is being treated as if for a single box when really it's the whole
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program of 726 boxes which technically before you is one box. that's not what san francisco appealed them. appealed the exrole program exemption and then for some reason the single box was tacked onto their appeal. there's nothing in anything we filed that says you're talking about a single box. so my point is that if you were to deny the appeal, it would be as to a single box and it may be that the next one that comes up, there would be another appeal before with you. because there would be different information about that box and does the categorical exemption filt? each time you do something based on exemption you look at the facts that have project. here instead of looking at one project, what you're creating is 726 projects. that doesn't make sense for the city or the public or the environment. supervisor mirkarimi: structurally speaking, if in fact an e.i.r. had been conducted and that the net effect is that there were
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negative impacts or impacts that would not be seen to be substantial, then how would you envision that process then the neighborhoods engaging with d.p.w. and permit appeals? >> i think think at that point, go through the e.i.r. process, maybe you'll find that they can put these on private property or underground. but assume they look at alternatives and there's still the above ground boxes. there would be specific mitigation measures that would be -- would apply to each one with of these boxes. they could be applied by staff and if appealed they would -- the board of appeals would need to do is make sure those mitigation measures would be applied fairly. you wouldn't have environmental review in the same way. supervisor mirkarimi: but that would be would have to be applied box by box according to that scenario. >> i don't know -- they could try to get them all approved at once, too. if you did an e.i.r., why couldn't they pick the locations and figure them out in one process? it was the city's choice how they set it up.
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at this point you're on the road to doing individual boxes without an overarching environmental review that takes a look at the big picture and what makes sense is mitigation and alternatives that's what's wrong with what's going on. supervisor mirkarimi: thank you. supervisor avalos: thank you, president chiu. this is a question for the clerk of the board. and that is that the apellant has raced -- raised an issue with regard to the notice of this meeting. the categorical exemption for the 726 boxes which is acknowledged by multiple -- by the clerk's office as memorandum to the attorneys dated april 15 which specifically references multiple locations, yet the notice that is on our calendar today only references one of the 726 locations. you can explain why the notice is only for the location on la playia street? -- playa street?
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>> if you just give me a moment i will confer with my deputy and i'll answer your question in just one moment. president chiu: why don't we proceed to supervisor wiener. supervisor wiener: thank you. so i know you said you're not, but you are speaking on behalf of the -- >> i'm glad to answer any questions you have. supervisor wiener: one of the things that is a little bit different about this appeal, in most -- in other ceqa appeals where with we're trying to determine whether environmental review is necessary, it's also pretty clear that the city, whether it's this board or a different commission or body, has the power to approve or deny the project. so in the -- so independent of whether the environmental review the city can issue or not issue a building permit or there's discretionary review by the planning commission, but clearly the decision making power is within the city and county of
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san francisco. i understand that our ability separate from environmental review toually approve or disapprove -- to actually approve or disalove in kind of project may be fairly limited by state law. that at&t as a public utility regulated by the cpuc has certain rights in terms of placing items on the public right of way. and so i guess my question is, let's say we order an environmental review here and it proceeds and then it comes to us and let's say we decline to certify it, we reject the e.i.r. is the project dead at that point? is at&t able to move forward anyway and place their boxes on our streets? and i ask this just in terms of the utility of environmental review and this kind of situation where we may or may not have the right to approve or disapprove the project on the merits. >> there are a number of cases
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which involve projects like building permits that really don't have the power to deny but you have the power to condition. and this would be in that category. if at&t has applied to you, the city, for a permit, if it didn't need to do, that i don't think it woofment if it doesn't need to do it, then it's wasting everyone's time here. so at&t has applied for a permit, we have to proceed on the basis of that application and that's what's going on here today. the city's obligated to respond to their application if they prepared an e.i.r. and the city didn't certify it, i would imagine what i see everywhere else is the city will give direction but about what's inadequate about the e.i.r. and direct that if they want to continue with their permit application they need to proceed with that environmental review. in terms of whether the city can say we just don't want to consider your project, i don't know about that. it seems to me that what you need to do is look at alternatives and mitigations. alternatives can, you're


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